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Dukali v Lamrani: a cautionary tale on how the courts define marriage

Dr John Fox and Eleanor Fletcher, both barristers at Lamb Building, consider the lessons to be learned from the court’s approach to determining the validity of the parties’ marriage in Dukali v Lamrani

Dr John Fox, barrister, Lamb BuildingEleanor Fletcher, barrister, Lamb Building

Dr John Fox and Eleanor Fletcher, barristers, of Lamb Building

The recent case of Dukali v Lamrani  [2012] EWHC 1748 turned on the question of what constitutes a valid marriage. Originally an application under Part III of the Matrimonial and Family Proceedings Act 1984 (see below), the case nevertheless concerned a marriage ceremony conducted in the UK (in the Moroccan Consulate), but according to the laws of a foreign jurisdiction, namely Morocco. Although it was not a purely religious marriage, it was a civil marriage not in compliance with the English Marriage Acts 1949-1994 but in compliance with Moroccan family law. If it had been conducted in Morocco it would have been recognised in this country, but unfortunately for the applicant, the High Court held that marriages entered into in England have to comply with the laws of England (even when, as here, there had been a foreign divorce).

Facts of the case
The parties were married on 8 January 2002 in a civil ceremony at the Moroccan Consulate. They went through a marriage ceremony with the 'adoul' or notary, in accordance with the family law of Morocco. Both parties have dual citizenship and the families on both sides wished the marriage to be conducted formally at the consulate. There were witnesses and a marriage certificate. However, there was no compliance or, according to the learned judge, any purported compliance with the English Marriage Acts 1949-1994.

The parties had a child, Selma, in 2006 and separated in 2009. Both parties agreed that they treated their relationship as a marriage until their separation in 2009.

The wife petitioned for divorce at the Principal Registry here in May 2010. The husband filed his answer in August 2010 claiming that the original marriage had not been valid under English law as there had been no compliance with the English Marriage Acts. In the meantime, the husband had himself petitioned for divorce in Morocco in April 2010, which was concluded in June 2011. The Moroccan divorce provided little financial provision for the wife and, importantly, made no provision regarding the parties' principal asset, a mortgage-free flat in West London worth around £300,000.

The wife then applied for leave to obtain financial relief under Part III of the Matrimonial and Family Proceedings Act 1984, on the basis of the Moroccan divorce.

Argument before Holman J
The wife maintained that the marriage was a valid marriage for the purposes of Part III of the Act. Evidence from the Moroccan Consulate and the Consul General showed that the staff there believed that the marriage ceremony was valid under English law; they emphasised that it was not purely religious but was conducted as a Moroccan civil ceremony under the family law of Morocco. Relying upon the Vienna Convention on Diplomatic and Consular Relations 1963, it was said the marriage should therefore also be recognised under English law.

The husband submitted that, despite the divorce he had obtained in Morocco, the marriage ceremony that the parties had undertaken on 6 January 2002 had not complied with the English Marriage Acts and therefore could not be recognised for the purposes of a Part III application. Secondly, although he had obtained the Moroccan divorce, he argued that it should not be recognised here.

Unusually, the Attorney General intervened on public policy grounds and supported the husband. Submitting that the marriage at the Moroccan Consulate was not valid under English law, it was argued that the financial consequences of marriage should only occur for those who have undergone the appropriate civil ceremony in accordance with the law of England and Wales, in the form Parliament has prescribed.

In his judgment, Holman J relied heavily on the decisions of Bodey J in Hudson v Leigh [2009] EWHC 1306 (Fam), [2009] 2 FLR 1129, Al-Saedy v Musawi (Presumption of Marriage) [2010] EWHC 3293 (Fam), [2011] 2 FLR 287 and El Gamal v Maktoum [2011] EWHC B27 (Fam). In those cases, it was held that a ceremony or event could be held either to be valid, void (i.e. sufficient for a decree of nullity under s.11 Matrimonial Causes Act 1973) or a so-called "non- marriage".

Quoting from the judgment at paragraph 23: 

"It thus seems that, in 2002, both these parties were under the impression or belief that their ceremony of marriage was of legal effect in both Morocco and England, and that that belief was fully shared by the staff of the Consulate within which the marriage took place."

Holman J dealt with the Moroccan Consulate's evidence that the marriage should be recognised under English law briefly: since Radwan v Radwan [1973] Fam 24, the relevant law for a Consulate was the law of the receiving state, not the sending state. The marriage ceremony undertaken by the parties would have had to comply with the English Marriage Acts, which it did not, nor had it purported to do so. Despite the Vienna Convention upon which the Consulate based their belief, the overriding principle was that the law governing ceremonies conducted at the Consulate was the law of England. Although it was a valid Moroccan legal marriage, it was not valid under English law.

Just because the parties believed that the marriage was valid in England it did not mean that it was. Quoting Bodey J in El Gamal, Holman J followed Bodey J's judgment at paragraph 86:

"It is not the law, in my judgment, where no or minimal steps are taken to comply with the Marriage Acts and so the marriage does not set out or purport to be a marriage under those Acts, that it nevertheless suffices if the participants hopefully intended, or believed, that the ceremony would create one."

On behalf of the applicant wife it was argued, following the Court of Appeal authority of the Chief Adjudication Officer v Bath [2000] 1 FLR 8, that s49 of the Marriage Act 1949 was relevant and further that there was a presumption of marriage based on the parties' long cohabitation which had not been displaced.

Section 49 reads:

'If any persons knowingly and wilfully intermarry under the provisions of this Part of this Act . . . (e) in any place other than the church, chapel, registered building, office or other place specified in the notice of marriage and certificate of the superintendent registrar . . . (f) in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of the registrar of the registration district in which the registered building is situated . . . the marriage shall be void.'

It was argued that this was relevant to the present case, but the learned Judge was not persuaded and preferred to regard Bath as a case regarding long cohabitation.

In Bath, the parties had lived together as man and wife for 37 years following a Sikh marriage in a Sikh temple in 1957. Holman J did not accept that in the present case there was such a presumption of long cohabitation or 'cohabitation for a significant period' (Bath at [31]) as the parties had only been married for seven years. He would not say what would constitute sufficient length, but "a longer period than seven or eight years must be required." [33].

In addition, Holman J held that the presumption in any event had to be a "strong" one but could be displaced by sufficiently strong evidence to the contrary. In this he also had recourse to Bodey J's judgment in Al- Saedy at [72]:

"I find in any event that a respondent succeeds in rebutting the presumption of marriage (assuming no evidential basis for the possibility of there having been some covert ceremony or something of that sort) if he or she can identify the only known ceremony or event which might have constituted a marriage and can show that it did not have that effect in English law. That is precisely the case here."

Since the only ceremony in this case was that at the Moroccan Consulate,

"If that was not itself effective as a valid or even a void marriage in English law, there is simply no room for applying the presumption." [Holman J at 35]

Therefore, in this case, as in El Gamal,

"this was not…a void marriage but was, in shorthand, a 'non-marriage. " (Bodey J at [87])

Can a 'non- marriage' qualify under Part III?
The crucial problem for the applicant wife in seeking to have her marriage recognised for the purposes of Part III was its location.

"If the parties had travelled to Morocco and done there exactly what they did at the consulate in London, then their marriage would unquestionably have been valid not only there but here." [43]

Holman J was clear, however, that a 'marriage' for the purposes of Part III "must mean and can only mean, a marriage which is, or under English law is recognised as, a valid or at least a void marriage." [44] As he had set out at length, this marriage was a 'non- marriage' and therefore could not be recognised for the purposes of Part III. Since he reached that conclusion, the Moroccan divorce could not be recognised as the marriage upon which it was based was not recognised by the English court.

A cautionary tale
Following the High Court's decision the wife could make no application for financial relief for herself and the child would appear to be illegitimate. This case is a salutary reminder to the legal profession and members of the public in general, that if you wish to contract a valid marriage in England, you have to comply with the laws of England.